Citation Nr: 1748294 Decision Date: 10/26/17 Archive Date: 11/03/17 DOCKET NO. 06-21 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a compensable rating for pseudofolliculitis barbae. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from September 1977 to March 1980. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. A hearing was not requested. In May 2014, the RO scheduled a VA skin examination to determine the nature and extent of the Veteran's pseudofolliculitis barbae. The June 2014 supplemental statement of the case indicates that the Veteran failed to report to the examination and did not provide good cause for his absence. In November 2014, the Board remanded the Veteran's claim to schedule a new examination. The Board also instructed the RO to obtain records from the VA Medical Center in New York, the VA Medical Center in Orlando, and the Social Security Administration (SSA). The RO has complied with these instructions, having obtained the requested medical records and scheduled the Veteran for examinations. In the event that the Veteran did not attend a VA examination, the RO was instructed to associate with the claims folder a copy of the examination notification letter. If such a copy was not available, the RO was to request a statement from the VA Medical Center explaining the regular procedures of mailing examination notification letters. The Veteran has failed to appear at the three subsequent VA examinations that the RO has scheduled for him. See September 2016 deferred rating. The RO performed a Vine Link search for anyone in the federal prison system, the Florida prison system, and the New York prison with the Veteran's name, and found nothing. See February 2017 correspondence. Where, as here, the Veteran fails to attend an examination for a non-initial claim for an increased rating, the Board is required to deny the Veteran's claim. See 38 C.F.R. § 3.655(b) (2016). However, the RO did not follow the Board's instructions by associating with the claims file a copy of the examination notification letter or a statement explaining notification procedures. The RO has provided strong circumstantial evidence of notification, and therefore substantially complied with the Board's remand instructions, but has not provided the requested direct evidence of notification. The Veteran, on the other hand, has now failed to attend four VA examinations without providing good cause for his failure to attend. Under the circumstances, rather than deny the Veteran's claim for failure to attend a scheduled VA examination, the Board will address the Veteran's claim based on the evidence of record. The Veteran will not be prejudiced by this approach, in that it will provide him with a greater level of review than his claim would normally be afforded after his failure to report to multiple VA examinations. 38 C.F.R. § 3.655(b) (2016). FINDING OF FACT The Veteran's pseudofolliculitis barbae is not characterized by one or more characteristics of disfigurement, one or more unstable or painful scars, or a skin condition covering 5 percent or more of the entire body. CONCLUSION OF LAW The criteria for an initial compensable disability rating for pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.118, Diagnostic Code 7813 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is service-connected for pseudofolliculitis barbae at an initial non-compensable rating under Diagnostic Code 7813 from March 13, 1980. In December 2004, the RO denied his claim for an increased rating. The Veteran is appealing that decision. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to October 20, 2003, the date that the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). Diagnostic Code 7813 provides compensation for service-connected dermatophytoses, including of the body (tinea corporis), head (tinea capitis), feet (tinea pedis), beard area (tinea barbae), nails (tinea unguium), and inguinal area (jock itch, tinea cruris). 38 C.F.R. § 4.118. Such disorders are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. Id. Since the Veteran's pseudofolliculitis barbae is most consistent with disfigurement of the face, the Board will assess the Veteran's symptomatology under Diagnostic Codes 7800, 7802, and 7806. Diagnostic Code 7800 provides compensation for disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. A 10 percent rating is appropriate for a skin disorder with one characteristic of disfigurement of the head, face, or neck. Id. A 30 percent rating is appropriate for a skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement. Id. A 50 percent rating is appropriate for a skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with four or five characteristics of disfigurement. Id. An 80 percent rating is appropriate for a skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with six or more characteristics of disfigurement. Id. Note (1) to Diagnostic Code 7800 provides that the eight characteristics of disfigurement are: 1) scar is 5 or more inches (13 or more cm) in length; 2) scar is at least one-quarter inch (0.6 cm) wide at the widest part; 3) surface contour of scar is elevated or depressed on palpation; 4) scar is adherent to underlying tissue; 5) skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm); 6) skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm); 7) underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm); and 8) skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm). 38 C.F.R. § 4.118. Note (2) to Diagnostic Code 7800 provides that tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate. 38 C.F.R. § 4.118. Note (3) provides that unretouched color photographs are to be taken into consideration when rating under these criteria. Id. Note (4) provides that disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, are evaluated under the appropriate diagnostic code(s) and combined under section 4.25 with the evaluation assigned under this diagnostic code. Id. Under Note (5), the characteristic(s) of disfigurement may be caused by one scar or by multiple scars, and need not be caused by a single scar in order to assign a particular evaluation. Id. Diagnostic Code 7802 provides compensation for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118. A 10 percent evaluation is appropriate for scars of 144 square inches (929 sq. cm.) or greater in area. Id. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damages. Id. Note (2) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or the trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.118. Diagnostic Code 7806 provides compensation for service-connected dermatitis or eczema. 38 C.F.R. § 4.118. A 0 percent rating is appropriate where less than 5 percent of the entire body or less than 5 percent of exposed areas is affected and no more than topical therapy was required during the past 12-month period. Id. A 10 percent rating is appropriate where: 1) 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or 2) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 30 percent rating is appropriate where: 1) 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or 2) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 60 percent rating is appropriate where: 1) more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or 2) constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. Id. Also under this Diagnostic Code, scars may be rated under Diagnostic Codes 7800 to 7805, depending on the disability. The use of topical corticosteroid treatment, such as skin creams, does not constitute "systemic therapy" under 38 C.F.R. § 4.118. Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017). The Board has found only two medical records that specifically reference pseudofolliculitis barbae. A September 2005 VA dermatology note reads: "also presents several ingrowing hair folliculitis barbae given triamcinolone cream . . . ." A June 2006 VA dermatology note reads: "Folliculitus-minimal." These records are the only medical indications of pseudofolliculitis barbae over the course of the appeal. This evidence is insufficient to establish a characteristic of disfigurement, the presence of an unstable scar, the presence of a painful scar, or a skin condition covering 5 percent or more of the body so as to support a compensable rating under Diagnostic Codes 7800, 7802, or 8706. Other VA dermatology notes of record do not support a compensable rating for pseudofolliculitis barbae. A number of records indicate treatment for fungal infections with topical creams. See, e.g., June 2008 VA psychiatry note. Some records indicate a skin condition of the hands only. See March 2006 VA dermatology note; December 2004 VA examination. Others records indicate skin disease of the hands and feet. See March 2007 VA dermatology note; December 2006 VA dermatology note; September 2006 VA dermatology note; June 2006 VA dermatology note. Others records indicate conditions of the groin and hands or groin and feet. See December 2005 VA dermatology note; November 2005 VA dermatology note. The minimal incidence of medical records regarding pseudofolliculitis barbae relative to the incidence of other skin disorders of the hands, feet, and groin also suggests that any symptomatology regarding pseudofolliculitis barbae is minimal. This also weighs against an increased rating under the applicable Diagnostic Codes. In reaching these conclusions, the Board has considered the Veteran's lay statements. Specifically, the Board has considered his October 2003 correspondence, which reads: "I am unable to shave my face, even though its covered with hair, I am suffering with burning, itching all the time." The Board has also considered the Veteran's September 2005 notice of disagreement, which reads: "In addition I am requesting that my pseudofolliculitis barbae, be increase. I am unable to shave my face, and I don't like wearing a beard." The Veteran is competent to provide such testimony because it is within the knowledge and personal observations of lay witnesses. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Unfortunately, such testimony by itself does not support a compensable rating under the applicable Diagnostic Codes for the skin. The Veteran is also not entitled to a compensable rating under the Diagnostic Codes for skin disorders as they existed prior to October 23, 2008. Prior to that date, a compensable rating under Diagnostic Code 7800 required a moderate, disfiguring scar, which the Veteran does not have. 38 C.F.R. § 4.118 (2008). A compensable rating under Diagnostic Code 7802 required a scar area of approximately one square foot, which is not supported by the evidence of record. Id. A compensable rating under Diagnostic Code 7806 requires eczema with exfoliation, exudation, or itching. Id. The Veteran does not have a diagnosis of eczema, and one report of itching over the course of a decade's worth of evidence is insufficient symptomatology to justify a compensable rating under the prior version of Diagnostic Code 7806. The evidence also does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code, as those codes existed both before and after October 23, 2008. Lastly, the Board finds that the issue of an extraschedular rating has not been raised by the record, and will not consider referral. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). Specifically, there is no indication that the Veteran's pseudofolliculitis barbae results in marked interference with employment or frequent periods of hospitalization, as required for the second prong of extraschedular analysis. Thun v. Peake, 22 Vet. App. 111, 116 (2008). ORDER Entitlement to an initial compensable rating for pseudofollicultiis barbae is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs